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10. When an instrument, in its true character, is only a will, but it is not properly attested, the fact that it has not been revoked or repudiated in life can give it no effect after death; M'Carty n. Waterman, 84_552.
11. A written contract, by which A agrees with B that, if the latter will maintain the former during, life," all the personal property of A shall, at his death, become the property of B”, will not, on the death of A, transfer the property to B, unless attested as is required of a will, although such contract be not revoked or repudiated by A during life; M'Carty o. Waterman, 84–552.
2579. Who may have probate. No appeal lies from the action of the clerk in probating a will. Aliter as to the action of the court; Duckworth v. Hibbs, 38–78.
2584. How proved. The competency of an attesting witness will be presumed, until the contrary be shown. Proof, in the absence of a contest, of the genuineness of the signatures of the attesting witnesses and that they are dead or non resident of the state, or can not be found, and that they attested it at testator's request and that the subscribing witnesses, in person, wrote their own names in his presence suf. fices; Herbert v. Berrier, 81-4.
2587. Proof, how preserved. Express proof of the capacity of testator to make a will and of his freedom from coercion, when no contest is pending, is not required by this section. This, in the absence of proof, is presumed; Herbert v. Berrier, 81-5.
ARTICLE 3- CONTEST. 2595. Objections to probate - Continuance. After a judgment agains the validity of a will, in an action to resist the probate thereof, during the pendency of which action a special administrator was appointed, it is proper, for the court, to appoint a general administrator, although an appeal may be taken from such judgment. In such case, by the appointment of a general administrator, the court does not deprive itself of the power to instal the rightful executor in office should a judgment of reversal result in a final adjudication declaring the will valid and effectual; Hayes v. Hayes, 75–396:
2596. Complaint to contest. An action to contest the validity of a will is statutory. Either party may demand a jury; Deig v. Morehead, 110_454; Lamb v. Lamb, 105–456; Harris v. Harris, 61-117.
2. Change of venue is allowable; Rogers v. Howard, 4–325.
3. To give a court jurisdiction, of an action to contest the validity of a will, it is necessary that the testator shall have died or left assets in, or assets of the estate must have come in to, the county where such contest is made. Nevertheless, where the court is one of general jurisdiction — as the circuit court - the facts which give it jurisdiction of the subject of the action need not affirmatively appear on the face of the complaint. Its jurisdiction will be presumed, unless the contrary be shown; Lee v. Templeton, 73–322, following Kinnaman v. Kinnaman, 71-417 and Thomas v. Wood, 61-137.
4. Complaint to overthrow a will, which alleges, generally, that “the will has been admitted to probate unlawfully and without sufficient proof” is too vague and uncertain; Herbert v. Berrier, 81-7.
5. If such a complaint does not show a joint cause of action in several plaintiffs it is insufficient. It may be questioned, for such defect, by error assigned in the supreme court; Scott o. Farman, 89–581; see Harris v. Harris, 61-117.
6. Proceeding to set aside a will on the ground of testator's mental incapacity. The rule which allows the opinions of non expert witnesses to be given on the ques. tion of insanity is one of necessity. It rests on the proposition that there may be some thing in the looks, deportment and the like of the person, not describable in words, which may contribute to the conclusion that he is of unsound mind; Cline 0. Lindsey, 110–341.
2598. Notice - Hearing. The provisions of section 409, as to the trial by the court of causes which were of equitable jurisdiction prior to June, 1850, do not apply to a proceeding to contest a will. In such proceeding there is a right to jury trial; Lamb v. Lamb, 105-457.
2. Action, to contest a will, dismissed by some of the plaintiffs. It stands as if it had been commenced by those who did not dismiss. Å bond filed with a verified complaint is not annulled by such dismissal; Kinnaman v. Kinnaman, 71-417.
2605. Appeal to the supreme court. Section 655 repeals this section as to the assign
ment of errors as to matters of fact in connection with the probate of wills; Coffman 0. Reeves, 62–334.
2. A mere clerical mistake in an assignment of error — as the use of one word for another — will not preclude the supreme court from considering and deciding the precise question which was, manifestly, intended to be presented thereby; Landon v. White, 101-250.
SEC. Divorce, A is cause for....... 1032 Procurement of......
1923 Husband loses inheritance by 2497, 2498 attempting
1923 Support, suit for, on.. 5132 to 5137, Search-warrant for instruments used 1619
5139, 5140 Township Trustee may sue on .... 5139 Absconding Debtor Wife loses inheritance by.
2496 ARREST, see. support, may sue for, on. 5132 to 5137 ARREST AND BAIL, sec.
ATTACHMENT, sel. Abatement
NE EXEAT, see. Action, A not caused by death of - SURETY, see. administrator
2293 bastard child
997 Absence executor.
2293 Death, presumed from ........... 2232 mother in bastardy
Limitation affected by...297, 1597, 2601 party to suit...
271, 988 Action, A of, not caused by
Absentee death (see above).
Administration on estate of.... 2232 disability of party to suit 271 Death of, when presumed
2232 removal of admr. or exr. 2293 Estate of, how settled .
2236 resignation of admr, or exr.. 2293 Guardianship of children of.... 2235 transfer of interest. 271 Wife of A, rights of......
2234 Answer in A
Will, when A inay contest.
2601 costs on
365 judgment on finding against 365 Abstract of Title justices, to be verified before. 1460
Court may require ...
363 plea in bar, preceded by...... 365 trial of issues in
365 Academy Appeal, death not cause for... 637 Information for felony, plea in A to 1733
Incorporation of ...
3433 Nuisance, sentence for A of
1859 Accessory suit for A of ......
291 After the fact............... 1789 Abduction
Before the fact..
1788 Child (of), to conceal or detain.... 1915
Corpse stolen, receiver is..
2168 Females (of), for prostitution.. 1993
Indictment against, form of.. 1734 evidence requires corroboration. 1807
Jurisdiction to try
1582 Jurisdiction of crime of.......... 1584
Resident, aiding foreign felony.... 1576
Trial of A, before principal. . 1788, 1789
3763 information as to 1996 to 1998 New trial, cause for, civil cases ... 559 selling
1924 Accomplice Operation, submitting to, for.... 1924 Witness (is), in criminal cases..... 1798